Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03149/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 October 2016
On 07 December 2016

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

BISRAT HAILU
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms D Revill, Counsel, instructed by Duncan Lewis & Co
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Ethiopia. He arrived in the UK in November 2003 and claimed asylum. This claim was rejected and his appeal against that refusal was unsuccessful. He was subsequently arrested and convicted of possessing a false passport, receiving a sentence of nine months' imprisonment with a recommendation for deportation. Following refusal of further representations he was issued with a deportation order in June 2006. In December 2011 the respondent decided, having reconsidered his application for humanitarian protection/discretionary leave, to refuse to revoke her deportation order.

2. The appellant's appeal was allowed to the limited extent that the decision was not in accordance with the law through failure to consider whether the claimant had established a right of residence on the basis of EU law on the basis of a relationship with an EEA national. However when the case was sent back to the respondent, she decided, in light of the accepted breakdown of his relationship with the EEA national, to maintain her decision not to revoke the deportation order. However, the appellant's appeal against that new decision was also allowed on appeal - to the limited extent that the new decision was found to be not in accordance with the law for failure to consider whether the appellant had a genuine and subsisting parental relationship with his children.

3. In the course of further exchanges the respondent accepted that the appellant had made a fresh asylum claim based on a well-founded fear of persecution in Eritrea as a converted Pentecostalist Christian. On 17 November 2015 the respondent refused this claim. The appellant appealed on two grounds: (1) that he would be persecuted on return to Ethiopia as that country would forcibly deport him to Eritrea; and (2) the respondent, having accepted that he had family life in the UK with his three dependant children all under 18, should not deport him.

4. The appellant's appeal came before First-tier Tribunal Judge Cory. At the hearing the appellant's Counsel confirmed that the appellant no longer relied on ground 1, but submitted that in relation to ground 2 the appellant was entitled to succeed under para 398 of the Immigration Rules. On 8 August 2016 the judge decided to dismiss the appellant's appeal.

5. The First-tier Tribunal Judge first examined whether the respondent was correct in classifying the appellant as a foreign criminal, who was appealing against revocation of a deportation order. Having decided she was, the judge proceeded to examine whether the appellant could benefit from para 399 and 399A and if not, then para 398: see paras 29-41.

6. The grounds of appeal were twofold. It was first of all contended that the judge had erred in considering that the appellant met the criteria set out in para 398 because his offending had caused serious harm, as that was not the basis on which the respondent had decided to deport him and, applying the guidance given in Chege ("is a persistent offender") [2015] UKUT 00187 (IAC) (Chege 2), it was not open to the Tribunal to substitute its own view of the matter. The second ground advanced the argument that the judge's reasoning did not support a finding that the appellant's offending had caused serious harm, only that it had the potential to damage the integrity of the immigration system. Certainly, it was submitted, the judge could not justifiably base his assessment on the appellant's single conviction in 2006 or the fact that the appellant had an immediate term of imprisonment imposed.

7. After Miss Revill had amplified these grounds, Mr Tarlow said that the respondent continued to rely on her Rule 24 response which made reference to Home Office IDIs identifying that the damage caused because of a false passport undermined the good order of society and in that way caused serious harm. It was not necessary for the respondent in her refusal letter to have stated explicitly that the appellant's offence caused serious harm; that was clearly implicit.

8. In response, Ms Revill said that the IDIs were not to be treated as offering authoritative interpretation, which was a judicial function based on construing the natural and ordinary meaning of the rules. In any event, the IDIs had not been placed before the judge.

9. I raised with the parties whether the recent judgment of the Court of Appeal in RJG v Secretary of State for the Home Department [2016] EWCA Civ 1042 had a bearing on the appellant's case. In that case the First-tier Tribunal Judge had mistakenly thought the appellant was appealing a deportation order engaging the automatic deportation provisions of s.32 of the UK Borders Act 2007, whereas the case was one of discretionary deportation under Section 3(5)(a) of the 1971 Act. At paras 20-21 Lloyd-Jones LJ stated:

"20. In any event, if the First-tier Tribunal made such an error, I do not consider that it had any material consequences. The First-tier Tribunal went on to consider the tests contained in Section 117C of the Nationality, Immigration and Asylum Act 2002 and in paragraphs 398-399A of the Immigration Rules These provisions apply whether deportation is automatic under Section 32 of the 2007 Act or discretionary under Section 35(a) of the 1971 Act. I can see no basis for the submission that a Tribunal is likely to have attached more weight to the public interest in removing an offender pursuant to the provisions governing automatic deportation than pursuant to those governing discretionary deportation. Moreover, there is nothing in the determination of the First-tier Tribunal in this case to support the view that this occurred. Furthermore, I note that Section 33(7)(b) of the 2007 Act provides that the application of an exception results in it being assumed neither that deportation order of the person concerned is conducive to the public good nor that it is not conducive to the public good. The reality is that both automatic and discretionary deportation fall to be considered under the same provisions in Section 117C which incorporates the view of Parliament as to the weight which should be given to the public interest in this context. The First-tier Tribunal directed itself correctly as to the tests to be applied."

10. Ms Revill submitted that the reasoning in RSG had no application in the appellant's case because not being a foreign criminal, he did not fall within s.117C.

11. Having reserved my decision and considered the arguments further I have concluded that the judge did not materially err in law.

12. It is important to note, before setting out my reasons, that the grounds raise no challenge to the judge's substantive assessment of the appellant's position under paras 399, 399A and 398. They are exclusively confined to what I will refer to as the preliminary issue of personal scope under paragraph 398(c).

13. I do not consider there was any error in the judge considering that the claimant came within the personal scope of para 398(c) which reads:

"The deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law."

14. It is not in dispute that the appellant did not fall into the category of persistent offender. The only issue concerned whether he fell into the alternative category of someone whose offending had caused serious harm.

15. Ms Revill is right that there is a distinction between offending that has caused serious harm and offending that has the potential to cause serious harm. A classic example is the offence of reckless driving which does not necessarily require the driver to have caused harm. However, although the judge did refer at one point to the appellant's offending having the "potential to damage integrity of the immigration system", it is clear from the passage read as a whole that he understood this feature of the appellant's offence to amount to serious harm that had been caused. Indeed the passages in which he refers to such potential is prefaced by the word "[i]n my view his offending caused serious harm ..." What the judge intended to convey was that the acquisition of a false passport was of itself damaging because of its impact on the integrity of the immigration system; it had an undermining effect.

16. Even if I am wrong about that, the judge's first reason for finding that the appellant's offence had caused serious harm is sufficient in my view, to justify it. That reason was that the there had been an imposition of an immediate custodial sentence. Again, Ms Revill may be right that in the abstract the imposition of an immediate custodial sentence may not always entail that the offence at issue caused serious harm. In the appellant's case, however, it was plainly open to the judge to find that his offence did.

17. Despite being unpersuaded that the judge erred in treating the appellant as falling within the personal scope of para 398(i), I am persuaded that he erred in failing to adhere to the guidance given in Chege 2 - whether however that amounted to a material error is a matter I shall come to later.

18. In Chege 2 at para 31 the Upper Tribunal stated: that:

"31. Where the foreign offender does not fall within subparagraph (a) or (b) of paragraph 398, it is a necessary precondition of the matter being considered by the Tribunal under s.117C that the Secretary of State has formed a view that he falls within subparagraph (c), as in this case she did. We endorse the view expressed by the Vice President of the Upper Tribunal in the unreported decision of Secretary of State for the Home Department v Bennett (DA/01409/20124) promulgated on 2 September 2012, that if the Secretary of State had not formed that view, it is not open to the Tribunal to substitute its own view on the matter, and the restrictive provisions of paragraphs 399 and 399A of the Rules would not apply in such a case."

19. I agree that there was a failure to adhere to Chege 2 guidance for the following reason. As regards the application of para 398 in the appellant's case the only reason given by the respondent in her refusal letter for considering that the appellant's deportation was conducive to the public good and in the public interest, was stated in para 72 as being:

"because you have been convicted of an offence for which you were sentenced to a period of imprisonment of nine months and you were .... recommended for deportation. Therefore in accordance with para 398 of the Immigration Rules, the public interest requires your deportation, unless an exception to deportation applies".

In this statement there is no reference to the respondent having decided that his offence had caused serious harm. Nor is there any other passage in this letter from which it is possible to infer consideration of the serious harm matter That was an error of law.

20. However, it remains to consider whether the error on the part of the judge was a material one. I have concluded it was not. First, even though in RJG there was no issue of whether or not paragraph 398 applied, whereas in this case that issue was central, the reasoning applied by the Court of Appeal in RJG does has analogous bearing to this case.

21. Second, from what I have stated so far it will be clear that as a matter of application of the relevant rules, the appellant's offence had caused and did cause serious harm. Although it did not attract a twelve month sentence, which would have brought it automatically within the ambit of paragraph 398 otherwise, the nature of the offence - acquisition of a false passport in the circumstances identified by the sentencing judge - sufficed to show that his offence caused serious harm. These circumstances included that he had acquired it with a view to travelling to Canada.

22. It has been submitted by the appellant on the basis of Chege 2 that it cannot be open to a tribunal to make a decision regarding para 398(c) and the serious harm requirement because the respondent has not yet formed a view that his offence caused serious harm. However, I do not think that this submission identifies any material error. The respondent's decision under challenge in this case was made in November 2015. Hence it cannot be challenged on the grounds that it was ".. not in accordance with the law" as s.84 of the NIAA 2002 as amended no longer includes that ground. By s.86, the FtT Judge had to determine any matter raised as a ground of appeal. The only relevant matter raised as a ground of appeal in this application was whether the appellant fall within the personal scope of 398(c). For reasons given earlier I consider that the judge was entitled to conclude that the appellant did.

23. As noted elsewhere, the grounds do not otherwise mention any challenge to the judge's findings as regards whether the appellant had shown very compelling circumstances over and above those described in paras 399 and 399A. In any event, I have examined this reasoning in paragraphs 28-41 of the judge's decision and I consider them entirely within the range of reasonable responses.

24. For the above reasons the FtT Judge did not materially err in law and his decision to dismiss the appellant's appeal is upheld.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal 07 December 2016